Why requiring that consent be explicit makes no sense when it comes to sex

Earlier, I criticized a California bill, SB 967, whose backers want to require that consent to sex be verbal and explicit. (The civil liberties group FIRE, Newsday columnist Cathy Young, and Professor K.C. Johnson have also criticized the bill).

As I noted earlier, this demand seems to be based on the false idea that the more explicit consent to an activity is, the more pleasurable the activity will be. But in the real world, the opposite is usually true, and the explicitness of consent is a bad measure of an activity’s welcomeness or enjoyability.

For example, my wife and daughter never ask for, or seek, permission before they hug me. Precisely because they know it would be welcome. Explicit consent is unnecessary when something is harmless and unobjectionable (or downright enjoyable, like sex between married couples).

By contrast, grudgingly consensual sex acts, like those between a prostitute and her clients, are generally preceded by explicit discussion and verbal agreement, because one party wants sex, while the other merely puts up with it to obtain money or other benefits. A verbal request followed by an explicit “yes” often reflects an imbalance in sexual desire between partners, not the ideal in which both partners deeply want it.

Rather than disrupting the rhythms of a couple’s lovemaking by requiring explicit discussion, these people should recognize that an explicit “yes” is not the ideal. When I told one of my past housemates, a court reporter who has taken depositions in sexual harassment and assault cases, about a similar proposed definition at Harvard, where I got my law degree, she was amazed. She could not think of anything more awkward than being asked point blank for sex by a would-be partner.

As I discussed earlier, couples can have good reasons not to verbally discuss sex before engaging in it.

I and my wife have been happily married for more than a decade, and like virtually all married couples, we do not engage in verbal discussion before engaging in each and every form of sexual activity. Indeed, in the first year of our daughter’s life, when she was a very light sleeper (she would wake up if you merely walked into her bedroom and stepped on a creaky part of the bedroom floor), it would have been unthinkable for us to engage in any kind of “out loud” discussion in our bedroom, which is right next to hers (the walls in our house are very thin, and you can hear sounds from one room in the next room). We certainly did not verbally discuss then whether to have sex. Having sex quietly when you are a parent is a sign that you are considerate of sleeping family members, and have a healthy marriage, not of sexual abuse.

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Hans Bader is Counsel at the Competitive Enterprise Institute in Washington. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law.